Criminal law Trial. The Administrative Court, in allowing the appellant local authority's appeal, held that the justices had erred in law in finding that the conduct of the authority's investigating officer had gone beyond simply providing the respondent with an opportunity to commit a crime in circumstances where the respondent had provided a taxi service to the officer in breach of licensing laws.

In the case of Dearlove the Magistrates found the following facts during a voir dire hearing on the issue of abuse of process: "In March 2009 Mr Dearlove placed an advert stating 'Chauffeur driven BMW X6, VIP, Executive, Corporate, Business travel, Airport Connections, Male/Female Chauffeurs'. At the bottom of the advert was his email address. The Council's records showed that Mr Dearlove was not licensed to offer the services in the advert. The Licensing Officer liaised with Mr Dearlove via email and although he initially indicated that he would be pursuing licence applications he subsequently said that he would be using his vehicle for 'weddings and funerals' only but he had had no work whatsoever.

“On 17 June 2009 a Senior Licensing Officer emailed Mr Dearlove reminding him of his licensing obligations if he was still minded to use his vehicle other than for weddings and funerals. In her email she warned regarding the possibility of a test purchase and the fact that further action would be taken if Mr Dearlove did not respond. Mr Dearlove did respond the following day advising that he was not trading as a taxi and in fact had had no business at all.

“On 4 August 2009 under supervision a Licensing Officer made a telephone call to the number provided in the aforementioned advert. A taxi journey between Ferriby and Beverley was arranged for a fare of £100. On 12 August 2009 the 'test purchase' took place. Mr Dearlove was the driver of the vehicle and escorted two Licensing Officers as requested. At the end of the journey Mr Dearlove accepted the £100 payment from the Officer and gave a pre-written receipt for the amount of £100 and a business card. The Council interviewed Mr Dearlove under caution on 8 September 2009 at which he accepted that he was the owner, driver, operator of the vehicle on the day of the test purchase and the sole owner of Executive Business Travel. He accepted that he knew he needed to be licensed but accepted the job because it was a carrot being dangled.”

Despite having the cases of Looseley and Amin before them the justices found as follows: “The 'test purchase' took place in the absence of any suggestion, information or complaint that Mr Dearlove had breached the licensing laws. Throughout the whole of the period 19 March 2009 to 12 August 2009 there is no evidence before the court that would give rise to any suspicion whatsoever that Mr Dearlove had acted illegally by contravening the licensing legislation. The only evidence we have is that Mr Dearlove placed a single advert in March 2009 and no more and following that had no work whatsoever."

"We were of the opinion that the actions of the local authority were excessive in the absence of any criminal activity on Mr Dearlove's part and as such we found it would be unfair to allow the proceedings to continue and ordered a stay of the proceedings.”

When the matter was appealed case stated the conclusions were somewhat different. In para 11 HHJ Richards stated as follows: “I accept that the justices' reasons show that they had the relevant authorities very much in mind. The real question in this case is not one of legal misdirection but whether it was reasonably open to the justices to reach the conclusion they did in the application of the relevant legal principles to the particular facts.

“For my part, I respectfully differ from the conclusion they reached. I do not consider that the Council's officers stepped over the permitted line. They did nothing that an ordinary member of the public might not have been expected to do. Although the justices placed a great deal of weight on the absence of any evidence of unlawful conduct by Mr Dearlove beyond the one test purchase, it is important to look at the wider context of that test purchase.

“It does not seem to me that there was, in the conduct of the council's officers, anything that could amount to impermissible entrapment. They booked the service just as an ordinary member of the public would do. The telephone booking was the equivalent, for this kind of service, of the flagging down of a taxi in Amin. At first sight it may look like a long journey and a high price, but for an executive service offering business and airport travel with alcohol included it cannot be said to be wholly out of the ordinary. In my view this was not a case of virtue testing or anything akin to it, notwithstanding the Council's knowledge that Mr Dearlove claimed to have no work and for that reason would no doubt be keen to take a booking. In my view the officers simply provided the opportunity for commission of an offence by the provision of the very kind of service that Mr Dearlove had advertised.

“Mr Dearlove had an express warning that a test purchase might be made and there can be no unfairness in those circumstances in initiating a test purchase a few weeks later. There is, moreover, a strong public interest in ensuring that only licensed operators supply taxi services of this kind.”

Conclusion

For a defense in this area to be successful there are three areas which need to be considered:.

Did the officer go over and above that which a normal member of the public would have done? This can be in the form of an excess inducement, pestering or placing the driver in a morally indefensible position ie in response to an emergency.

Was there suspicion that an offence could or would take place? This could be information on an individual or information that the issue was a problem in the area or community.

Authorisation: Were the actions in line with the with the Council’s policy? Was the officer authorised within the authority? And finally was there RIPA authorisation, if necessary?

_________________Think of how stupid the average person is, and realize half of them are stupider than that.George Carlin

They did nothing that an ordinary member of the public might not have been expected to do. Although the justices placed a great deal of weight on the absence of any evidence of unlawful conduct by Mr Dearlove beyond the one test purchase, it is important to look at the wider context of that test purchase

So basically the magistrates were saying that a driver caught plying for hire couldn't be prosecuted if there was no evidence they'd done it before. The system is cumbersome enough without putting another hurdle in the way.

And it's not as if there wasn't evidence pointing towards illegal activity anyway; the adverts, the claim that he would get a licence, and the claim that he was only doing weddings and funerals

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